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Court of Criminal Appeal 16 December 2016

Abdelmeseeh v R

[2016] NSWCCA 312

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE SERIOUS OFFENCE UNDER S.59(2) APPLICANT ON PAROLE AT TIME OF OFFENCE NO ERROR DEMONSTRATED

Citation: Abdelmeseeh v R [2016] NSWCCA 312
Court: Court of Criminal Appeal, NSW
Date: 16 December 2016
Judge(s): Meagher JA, Johnson J, Rothman J

Background

The appellant pleaded guilty in the Sydney District Court to assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900. The offence carried a maximum penalty of seven years' imprisonment. On 2 May 2016, the sentencing judge imposed a total term of three years, comprising a non-parole period of 18 months commencing 6 September 2015 and a balance of term of 18 months expiring 5 September 2018.

The offence arose from an unprovoked attack on a 48-year-old man travelling by train. The victim was followed from Arncliffe Railway Station by the appellant and his younger brother, then punched in the face in the street, knocked to the ground, and kicked to the face and back. The appellant was 21 years old at the time and was on parole for earlier offences involving entering premises with intent and stalking.

The appellant had a notable prior criminal history, including juvenile convictions for assault with intent to rob and armed robbery. His parole had been revoked before sentencing for the present offence, and he had already served the balance of that parole period in custody before his sentence for this offence commenced.

  • Whether the sentencing judge failed to give full and proper effect to a finding of special circumstances when structuring the non-parole period and balance of term.
  • Whether the sentencing judge failed to correctly apply the totality principle when accounting for the period already served on parole revocation.
  • Whether the sentence was otherwise manifestly excessive.

Decision

On the special circumstances and totality grounds, the Court found no error in the sentencing judge's approach. The judge was expressly aware that the appellant had spent time in custody serving the balance of his revoked parole before the current sentence commenced, and properly took that into account. The Court found that the sentence structure reflected the sentencing judge's findings, including any finding of special circumstances, and that no demonstrated error arose from these grounds.

On the manifest excess ground, the appellant relied heavily on a comparison with a single other sentencing decision. The Court rejected this approach, reaffirming that appellate intervention for manifest excess is not warranted simply because a sentence differs markedly from outcomes in other cases. The relevant question is whether the difference discloses a misapplication of sentencing principle, not whether the appellate court would have exercised the discretion differently.

The Court identified several weighty sentencing factors: the deliberate and predatory nature of the attack on a stranger on public transport; the sustained violence, including kicking the victim while he was on the ground; the appellant's status as a parole offender at the time; his history of violent offending; and the significant need for both specific and general deterrence. Taking all of these factors into account alongside the maximum penalty, the Court concluded the sentence fell well within the bounds of a proper exercise of sentencing discretion.

The appellant's attempt to draw parity with the outcome for his younger brother in the Children's Court was also dismissed. The Court noted that parity arguments based on co-offenders sentenced in different courts, particularly involving a juvenile, carry little weight.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a manifest excess ground cannot be sustained by reference to a single comparable sentencing decision; appellate intervention requires the difference to be explicable only by a misapplication of principle.
  • Attacking a stranger in a public place, following that person from a train, and continuing the assault after the victim falls to the ground are factors that the sentencing court treated as significantly aggravating.
  • An offender's status on parole at the time of the offence, combined with a history of violent and dishonesty offending, properly supports a heightened need for specific deterrence.
  • No parity obligation arises from a co-offender's sentence in the Children's Court; outcomes in that jurisdiction are not an appropriate benchmark for sentencing adults.
  • In dismissing all three grounds, the Court found that the sentencing judge had demonstrably engaged with the relevant facts and principles, and that the resulting sentence lay within the available discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm in company), s 95(1) (aggravated assault with intent to rob)

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Quayle v R [2010] NSWCCA 16
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
- RR v R [2011] NSWCCA 235; 216 A Crim R 489
- Ruttley v R [2010] NSWCCA 118
- Shortland v R [2013] NSWCCA 4; 224 A Crim R 486
- Sorensen v R [2016] NSWCCA 54
- Spark v R [2012] NSWCCA 140